Hanvey v. State, 75135

• Decision Date: 18 March 1988
• Docket Number: No. 75135,75135
• Citation: 368 S.E.2d 357,186 Ga.App. 690
• Parties: HANVEY v. The STATE.
• Court: Georgia Court of Appeals

Page 357

368 S.E.2d 357

186 Ga.App. 690

HANVEY v. The STATE.

No. 75135.

Court of Appeals of Georgia.

March 18, 1988.

Rehearing Denied April 1, 1988.

Certiorari Denied June 1, 1988.

Alfred D. Fears, Jr., Jackson, for appellant.

E. Byron Smith, Dist. Atty., Thomas R. McBerry, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant was indicted and convicted of the offenses of rape, aggravated assault (with intent to murder) and a terroristic threat. Defendant's appeal raises 18 enumerations of error. Held:

1. In enumeration of error 17 defendant contends there was a merger of the offenses. Enumerations of error 15, 16 and 18 raise the sufficiency of the evidence to authorize the conviction as to each offense. The State's evidence shows that: The victim, who was 76 years of age at the time of the trial, had known the defendant for approximately a year prior to the date of the offenses. The defendant lived across the street from the victim with his parents. On the night of the offenses, it was late and the victim was asleep when defendant came to the window of the victim's bedroom. The defendant identified himself and asked the victim to open the door so that he could call an ambulance for his sick mother. The victim went to the door and let the defendant into her home. After entering the house, the defendant dragged the victim into the bedroom, threw the victim on the bed, pulled the victim's pajama pants down, and placed his penis into the victim's vagina. While having intercourse with the victim, defendant placed a bed pillow over the victim's face and told the victim he would smother her if she did not quit "screaming and hollering." The victim testified that after defendant placed the bed pillow over her face she could hardly breathe. After defendant finished he got up off the bed and told the victim that if she called the police he would kill her and burn her house.

The victim's testimony provided the only evidence as to defendant's commission of the offense of a terroristic threat. OCGA § 16-11-37(a) provides that no person shall be convicted under that subsection "on the uncorroborated testimony of the party to whom the threat is communicated." As the victim's testimony is uncorroborated defendant's conviction for the offense of a terroristic threat was not authorized and the trial court erred in denying defendant's motion for directed verdict of acquittal as to the offense of a terroristic threat.

As to the offense of aggravated assault (with intent to murder), defendant's threat to smother the victim accompanied by his placing the pillow over her face so that she had difficulty breathing are sufficient to authorize this conviction. Zilinmon v. State, 234 Ga. 535, 539(8), 216 S.E.2d 830; King v. State, 178 Ga.App. 343, 344(1), 343 S.E.2d 401. In reaching this conclusion we reject defendant's contention that the State was required to prove that the pillow was a deadly weapon. Such proof was not necessary in proving aggravated assault (with intent to murder). Paschal v. State, 125 Ga. 279, 280, 54 S.E. 172. Moreover, the indictment did not allege that the aggravated ASSAULT was made with "a weapon likely to produce death."

In regard to the offense of rape, defendant contends that as the victim did not see the defendant place his penis in her vagina there is no direct evidence presented as to the element of carnal knowledge of the victim. However, there is no requirement that the victim's testimony in this regard be predicated on the victim's sense of vision. The victim may also give testimony predicated upon information gathered by other senses. In the case sub judice, the victim testified that she felt defendant's penis in her vagina. Defendant's contention is without merit. Also, contrary to defendant's contention there is no longer any requirement of corroboration of the victim's testimony in a rape case. Baker v. State, 245 Ga. 657, 266 S.E.2d 477.

Furthermore, our review of the transcript reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that defendant was guilty of the offenses of aggravated assault (with intent to murder) and rape. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Additionally, under the facts and circumstances of the case sub judice there was no merger of the offenses of aggravated assault and rape. OCGA § 16-1-7(a); Pryor v. State, 238 Ga. 698, 700, 234 S.E.2d 918; State v. Estevez, 232 Ga. 316, 319, 320, 206 S.E.2d 475.

2. Defendant's first enumeration of error contends that the trial court erred in overruling his motion to suppress. This contention arises from a search of defendant's residence. The search warrant identified the items to be seized as, "[m]ens clothing having human blood or sperm on them ..." During the search, officers also seized two magazines (Chic and Penthouse) which were introduced into evidence at trial for the limited purpose of showing defendant's bent of mind. See Tyler v. State, 176 Ga.App. 96, 100(2), 335 S.E.2d 691; Hill v. State, 183 Ga.App. 654, 656(3), 360 S.E.2d 4. The State's evidence is that the seizure of the magazines is governed by the "plain view" doctrine. See State v. Lyons, 167 Ga.App. 747, 307 S.E.2d 285; Johnson v. State, 170 Ga.App. 71(1), 316 S.E.2d 160; Strickland v. State, 175 Ga.App. 224, 225(1), 333 S.E.2d 140. Defendant's evidence is that the magazines were not in plain view, but were the fruit of an illegal extension of the search. The resolution of the contradiction in the evidence rests with the trial court on the hearing of a motion to suppress evidence and must be accepted unless clearly erroneous. McShan v. State, 155 Ga.App. 518, 519(2), 271 S.E.2d 659; State v. Watts, 154 Ga.App. 789, 790(4), 270 S.E.2d 52. As the evidence authorized the factual conclusion of the trial court, this enumeration of error is without merit.

3. In his second enumeration of error defendant contends the trial court erred in granting the State's motion in limine. The State's motion, predicated on the rape shield statute, sought to preclude the defense mentioning or introducing evidence that the victim had syphilis. Defendant's bodily fluids had been seized and tested for syphilis with negative results. Defendant argued that if the victim had syphilis and he did not, such supported his defense of mistaken identity.

At the hearing on the State's motion in limine, the State contended that the initial positive test of the victim for syphilis was false and colloquy centered on whether competent evidence was available on the issue of whether the victim had syphilis. The trial court did not grant the State's motion, but barred the use of incompetent hearsay evidence on the issue. The trial court also prohibited suggestion that the victim was infected until such was established by competent evidence. Defendant made no attempt at trial to introduce evidence as to the victim having syphilis. Under these facts and circumstances we find no error in the trial court's ruling.

4. Defendant called as his witness a microanalyst employed by the state crime laboratory. This expert testified as to the results of his examination of a number of items taken from the victim's house and from defendant's home for the presence of fibers or hairs. This expert had, for comparison, known samples of the head hair and pubic hair of the victim and defendant. The expert testified that he did not find any hairs which could have been defendant's on the items taken from the victim's home, nor did he find any hairs which could have been the victim's on items taken from defendant's house. Defendant enumerates as error the trial court's refusal to permit him to elicit further testimony from the microanalyst as to hairs found on items taken from the victim's home which were neither the victim's nor defendant's. Defendant argues that such evidence is supportive of his mistaken identity defense. However, the hairs were found only on two items, a blanket and an afghan, which the victim testified she had purchased at a yard sale two or three days prior to the date of the crimes at issue, and which uncontradicted evidence shows did not come into contact with the victim's assailant. "Admission of evidence is a matter which rests largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion. Alexander v. State, 239 Ga. 108, 110 (236 SE2d 83). If an item of evidence has a tendency to establish a fact in issue, then it is relevant and admissible. Patterson v. State, 233 Ga. 724, 725 (213 SE2d 612). Georgia law favors admission of any relevant evidence no matter how slight its probative value. Baker v. State, 246 Ga. 317, 319 (271 SE2d 360)." Whisnant v. State, 178 Ga.App. 742, 743, 344 S.E.2d 536. Under these circumstances the testimony which defendant sought to elicit lacked any probative value, and therefore, was properly excluded. Alexander v. State, 7 Ga.App. 88, 66 S.E. 274; Butler v. State, 173 Ga.App. 168(1), 325 S.E.2d 835.

5. Defendant's fourth enumeration raises the denial of his motion for mistrial predicated on the trial court repeatedly overruling his objections to the presence in full view of the jury of exhibits not yet in evidence. A second ground of defendant's motion for mistrial is the contention that the trial court displayed anger or animosity toward defense counsel for interposing the objection regarding the evidence.

The exhibits were present in view of the jury to facilitate their identification by a witness. The witness was in a wheelchair and did not use the usual witness chair, necessitating an unusual proximity to the jury. All of the items were identified and admitted into evidence (except one pair of blue jeans which was withdrawn, however, there was nothing inflammatory about this item which had been checked for bloodstains by the State serologist with negative results). Unde...